TOIGO VS. TOIGO (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

An appellate court confines its consideration to the facts reflected in the record on appeal and the necessary and reasonable inferences that may be drawn from them; statements by counsel in briefs or argument portraying what might have occurred are not considered. Lindauer v. Allen, 85 Nev. 430, 433, 456 P.2d 851, 853 (1969). Because appellant challenged the district court's findings on the character and division of community assets and debts and the denial of alimony and attorney's fees based on trial testimony, but failed to include the trial transcript or a statement of the evidence permitted by NRAP 10(e), the court had no basis to disturb the findings and affirmed. The court additionally admonished appellant's counsel, observing that a lawyer who appeals a trial court's findings without providing the trial transcript or an NRAP 10(e) statement does a disservice to the client. Noting that counsel had performed minimal discovery, called only the client as a witness, and filed an attorney's lien exceeding $26,000 against a client whose net community share was under $12,000, the court found the fee excessive and strongly recommended that counsel reassess his fees and advise the court of the results of his reconsideration.

In plain language

In this Nevada divorce appeal, Maria Aldona Toigo challenged the trial court's decree dissolving her marriage to Michael Toigo. She disputed how the judge characterized and divided the couple's community property and debts, and she challenged the denial of her requests for alimony and attorney's fees. The problem on appeal was procedural. Aldona's arguments rested on what witnesses said at trial, but her lawyer never included the trial transcript in the record given to the Supreme Court. The court explained that on appeal it can consider only what is in the record and the reasonable inferences from it; it cannot rely on a lawyer's descriptions of what testimony "might have" shown. Without the transcript (or an approved substitute statement of the evidence under the appellate rules), the court had no basis to second-guess the trial judge's findings, so it affirmed the decree. The court also pointedly criticized Aldona's attorney. It observed that he apparently performed minimal discovery and called only his client as a witness, yet charged fees exceeding $13,000 and filed an attorney's lien for over $26,000 against Aldona's award, even though her net share of the community estate was less than $12,000. The court said the fee seemed excessive, that appealing without a transcript did the client a disservice, and it strongly recommended that counsel reassess his fees and report back the results of his reconsideration.